State v. Charles , 263 Or. App. 578 ( 2014 )

SERCOMBE, J.

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII). ORS 813.010. He assigns error to the trial court’s denial of his motion to suppress evidence discovered as a result of what he contends was an unlawful seizure under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. In particular, defendant argues that he was unlawfully stopped when an officer knocked on the door of his residence, asked him to come outside and talk, accompanied him to a place outside to conduct field sobriety tests, read him his Miranda rights, and then asked for his consent to a patdown search. The state responds that, under the totality of the circumstances, a reasonable person would have understood that he or she was free to leave and, therefore, defendant was not stopped under either the state or federal constitution. We agree with defendant that the circumstances in this case amounted to a stop under Article I, section 9. Accordingly, we reverse and remand.

We review a trial court’s ruling on a motion to suppress for legal error and are bound by the court’s findings of historical fact if there is evidence to support them. State v. Hall, 339 Or 7, 10, 115 P3d 908 (2005). To the extent that the court did not make express findings on disputed factual issues, we state the facts consistently with the court’s ultimate conclusion. Id. We state the facts of this case in light of those standards.

Just before 8:00 p.m. on April 10, 2010, Groom, a deputy with the Jackson County Sheriffs Department, received a call about a vehicle stuck in a ditch in front of a residence on Butte Falls Highway. Approximately 15 minutes later, Groom pulled into defendant’s driveway in a marked patrol car and saw a pickup truck with its front end stuck in a large ditch on the side of the road, near the driveway. The truck was registered to defendant.

It appeared to Groom that the driver of the truck had taken too wide a turn when attempting to enter the driveway. Groom believed that the circumstances indicated that the person who had been driving the truck may have been impaired and, with that in mind, he “went to look for an impaired driver at the residence.” Groom, who was in uniform, knocked on the door of the residence, and it was answered by defendant’s wife. She told Groom that she had been driving the truck and had gotten stuck in the ditch when she swerved to avoid hitting a dog, but Groom did not believe that she was being truthful. A second deputy, Avery, who had arrived at the residence near the same time as Groom, was also present while Groom spoke with defendant’s wife. Groom then asked Avery to go across the street and speak to the witness who had called in the report about the truck, and Avery did so.

While he was talking with defendant’s wife, Groom saw defendant, who appeared to be very intoxicated, “staggering around in the house.” Defendant then sat down on the couch in the view of Groom. Groom asked defendant, who is hard of hearing, to come out and speak with him and, in response, defendant went out on the porch or front landing of the residence. Immediately after defendant went outside, he walked with Groom “into a flat area where [Groom intended] to have [defendant] perform field sobriety tests.” Groom then read defendant his Miranda rights because he was conducting an investigation of a possible DUII or “some kind of crime.” Defendant acknowledged that he understood those rights. Groom then asked defendant for permission to pat him down for weapons — Groom’s “common practice” after giving Miranda warnings — and defendant agreed. While conducting the patdown, Groom located the keys to the truck in defendant’s pocket. Thereafter, defendant made incriminating statements and was subsequently arrested for DUII.

Before trial, defendant filed a motion to suppress, asserting that he had been unlawfully seized before the pat-down search and that evidence obtained as a result must be suppressed under Article I, section 9, and the Fourth Amendment. After holding a hearing, the court denied the motion to suppress.

On appeal, defendant contends that the trial court erred in denying his motion to suppress, arguing that, under the state and federal constitutions, Groom’s actions in coming to his residence, asking him to come out and talk, reading him Miranda warnings, and asking for consent to pat him down amounted to a stop. Further, he asserts that the stop was not justified by reasonable suspicion. See State v. Ehly, 317 Or 66, 80, 854 P2d 421 (1993) (“[I]f a police officer is able to point to specific and articulable facts that give rise to a reasonable inference that a person has committed a crime, the officer has ‘reasonable suspicion’ and hence may stop the person for investigation.”). The state, for its part, does not contend that there was reasonable suspicion to support a stop or that, if the encounter amounted to a stop, suppression of the evidence is not required. Rather, the state argues only that, “[b]ecause asking defendant to come outside, reading him his Miranda rights, and asking for consent to pat him down did not effect a stop, the trial court correctly denied defendant’s motion to suppress.”

Thus, the question we must resolve in this case is whether the encounter amounted to a stop. Under Article I, section 9, individuals are guaranteed the right to be “secure in their persons *** against unreasonable search, or seizure.”¹ Because “[n]ot all governmental intrusions trigger the protections guaranteed” by Article I, section 9, “we must first decide whether the action is either a ‘search’ or a ‘seizure’ within the meaning of that section.” State v. Juarez-Godinez, 326 Or 1, 5, 942 P2d 772 (1997).

“‘Analytically, police-citizen encounters typically fall into one of three categories that correlate the degree of intrusiveness on a citizen’s liberty with the degree of justification required for the intrusion. At one end of the continuum are mere encounters for which no justification is required. At the other end are arrests, which involve protracted custodial restraint and require probable cause. In between are temporary detentions for investigatory purposes, often termed “stops,” which generally require reasonable suspicion. Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not.’”

State v. Backstrand, 354 Or 392, 399, 313 P3d 1084 (2013) (quoting State v. Fair, 353 Or 588, 593-94, 302 P3d 417 (2013)). “The thing that distinguishes ‘seizures’ *** from encounters that are ‘mere conversation’ is the imposition, either by physical force or through some ‘show of authority,’ of some restraint on an individual’s liberty.” State v. Ashbaugh, 349 Or 297, 309, 244 P3d 360 (2010) (quoting State v. Rodgers/Kirkeby, 347 Or 610, 621-22, 227 P3d 695 (2010)). The test to determine whether a seizure has occurred under Article I, section 9, “is an objective one: Would a reasonable person believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement.” Backstrand, 354 Or at 399 (citing Ashbaugh, 349 Or at 316). The “inquiry is necessarily fact-specific and requires an examination of the totality of the circumstances involved.” Id.

As the court in Backstrand observed, “the constitutional concern is with police-imposed restraints on citizen liberty, not with limiting contacts between police and citizens.” Id. at 400. Therefore, police may “‘approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them.’” Id. (quoting State v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991)). A seizure occurs only where the officer’s conduct “would cause the citizen to reasonably believe that the officer is intentionally restraining the citizen’s liberty or freedom of movement in a significant way — that is, in a way that exceeds the bounds of ordinary social encounters between private citizens.” Id.

Thus, the concept of a “show of authority,” in this context, refers to “a reasonable perception that an officer is exercising his or her official authority to restrain,” id. at 401; that is, “[e]xplicitly or implicitly, an officer must convey to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs,” id. at 400-01. A constitutionally significant “show of authority” can be inferred from “the content of the questions [asked by a police officer], the manner of asking them, or other actions that police take (along with the circumstances in which they take them).” Id. at 412. Under those principles, for example, a “mere request for identification made by an officer in the course of an otherwise lawful police-citizen encounter does not, in and of itself, result in a seizure.” Id. at 410; cf. State v. Rodriguez-Perez, 262 Or App 206, 212, 325 P3d 39 (2014) (where officers approached the defendant and his brother, told them that they suspected that the men were violating the law, asked for identification, and returned to their patrol car to verify the validity of the identification, “[u]nder the principles articulated in Backstrand, [the] circumstances were sufficiently coercive to result in a seizure”).

In this case, were we to look at each piece of the encounter between defendant and the officer independently, we would not necessarily conclude that any one piece, standing alone, amounted to a stop. For example, an officer may, generally, approach a citizen’s front door and knock on it without effecting a seizure. See State v. Portrey, 134 Or App 460, 464, 896 P2d 7 (1995) (“[A]bsent evidence of an intent to exclude, an occupant impliedly consents to people walking to the front door and knocking on it, because of social and legal norms of behavior.”). Likewise, we could not conclude that an officer’s request that a person come out of a residence to talk to the officer, on its own, constitutes a stop. See State v. Shaw, 230 Or App 257, 262-63, 215 P3d 105, rev den, 347 Or 365 (2009) (an officer’s request that the defendant come over and speak with him was not a stop); cf. State v. Dahl, 323 Or 199, 207-08, 915 P2d 979 (1996) (police order that the defendant come out of the house with his hands up was an unlawful seizure under Article I, section 9, because it effectively “deprived [the] defendant of any choice in the matter”). For the same reason, an officer’s suggestion that a person walk together with the officer may not evidence a stop. See State v. Crandall, 197 Or App 591, 595, 108 P3d 16 (2005), rev’d on other grounds, 340 Or 645, 136 P3d 30 (2006) (a person is stopped “if the individual is forced to alter his course of conduct or is summoned away from a task”). Nor would an officer’s request for consent to conduct a patdown search alone amount to a stop. See State v. Kinkade, 247 Or App 595, 599-601, 270 P3d 371 (2012) (the defendant was not stopped when an officer walked up to him on the street, asked if he could talk with him, and then inquired if he could pat him down). However, the inquiry is not whether each of the officer’s actions here, examined separately, would convey to a reasonable person that the person was not “free to terminate the encounter or otherwise go about his or her ordinary affairs.” Backstrand, 354 Or at 401-02. Rather, the question is whether all of the officer’s actions combine to form a whole greater than the sum of its parts; that is, whether, based on the totality of the circumstances, a reasonable person would believe that the officer had intentionally and significantly deprived defendant of his freedom of movement.

We note that the state appears to be of the view that the officer’s giving of Miranda warnings should not be a consideration in whether defendant was stopped. It cites the Oregon Supreme Court’s decision in State v. Ayles, 348 Or 622, 237 P3d 805 (2010), as support for its contention that “giving Miranda warnings should not be taken as effecting a restraint on a person’s liberty.” In Ayles, the court did not address the question of whether the giving of Miranda warnings is a factor to be considered in evaluating whether a person was stopped for purposes of Article I, section 9. Instead, in that case, the court considered whether the giving of Miranda warnings attenuated a prior illegality and, in that context, evaluated whether “the giving of Miranda warnings itself has a coercive effect that negates the vol-untariness of subsequent statements.” Id. at 635. The court observed that the “giving of the warnings, which is intended to assure voluntariness, cannot be used * * * to prove a contrary theory.” Id. at 635-36.

That, of course, is not the issue in this case. Rather, here, we must evaluate the totality of the circumstances before the patdown to determine whether a reasonable person, in those circumstances, would have believed that the officer had significantly deprived him or her of his or her liberty or freedom of movement. In our view, the officer’s giving of Miranda warnings is a factor to be considered in determining whether the officer’s actions conveyed a restraint on defendant’s liberty.

In Miranda v. Arizona, 384 US 436, 444, 86 S Ct 1602, 16 L Ed 2d 694 (1966), the Supreme Court held that the Fifth Amendment to the United States Constitution required that particular warnings be given when “a person has been taken into custody or otherwise deprived of his freedom in any significant way.” The Oregon Supreme Court requires the same warnings in those circumstances under Article I, section 12, of the Oregon Constitution. See State v. Shaff, 343 Or 639, 645, 175 P3d 454 (2007) CMiranda warnings are required only where a person is in full custody or “in circumstances that create a setting which judges would and officers should recognize to be compelling” (internal quotation marks omitted)). Those warnings are that a person “has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed.” Miranda, 384 US at 444. Analogously, a person is not entitled to the presence of an attorney during a police interview unless the person “is in custody, i.e., not free to leave” (under Article I, section 12) or “his or her freedom has been ‘significantly restrained’” (under the Fifth Amendment). State v. Terry, 333 Or 163, 172, 37 P3d 157 (2001). Thus, when an officer informs a person that he is entitled to the presence of an attorney during the course of further conversation with the officer, it would generally be reasonable to conclude that that entitlement is because the person “is in custody, i.e., not free to leave.” Id. Indeed, the popular understanding of Miranda warnings is that they are given when an individual is placed under arrest. See Commonwealth v. Donaldson, 786 A2d 279, 285 (2001) (“It is our belief that the average layperson would equate being Mirandized with being placed in police custody.”).

The reasoning of the Florida Supreme Court in Caldwell v. State, 41 So 3d 188, 201-02 (2010), is instructive. There, discussing the reading of Miranda warnings in determining whether a defendant was stopped under the Fourth Amendment, the court noted:

“Miranda warnings are a formality of arrest and are required only at the time of an arrest or prior to custodial interrogation. Further, the warnings are associated in the public mind with the spectacle of an individual being placed under arrest. Therefore, it is not unreasonable to conclude that an individual who is given Miranda warnings during what begins as a consensual encounter may interpret those warnings as a restraint on his or her freedom. For this reason, courts that have considered the application of Miranda in the context of an on-the-street police encounter have generally found it to be at least a factor in determining whether an individual has been subjected to an illegal investigatory stop under the Fourth Amendment. See, e.g., [United States v.] Poitier, 818 F2d [679, 683 (8th Cir 1987)]; United States v. Lara, 638 F2d 892, 898 n 10 (5th Cir 1981) (‘Giving Miranda warnings in a police-citizen encounter which is otherwise a nondetention interrogation may very well elevate such an encounter to a seizure * * * in light of the public’s association of Miranda warnings with an arrest.’); see also United States v. Montgomery, 377 F2d 582, 587 (6th Cir 2004) (noting that the district court listed the reading of Miranda rights as one factor indicating that a reasonable person in the defendant’s position would not have felt free to leave).

“This conclusion on the part of a reasonable person would be further supported by the fact that outside the context of an arrest or custodial interrogation, not all of the stated rights apply. In particular, Miranda requires that suspects be advised that they have the right to an attorney and that if they cannot afford an attorney one will be provided for them. * * * While this advisory warning is true during a custodial interrogation, it is not true during a consensual encounter or investigatory stop.”

(Footnote omitted; emphasis in original.) We have implied much of the same in State v. Cordray, 91 Or App 436, 442, 755 P2d 735 (1988) (“We conclude that a stop did not occur until the officers approached defendant and began reciting his rights to him.”).

In this case, we are not called upon to determine whether the giving of Miranda warnings in the course of a police interview, by itself, constitutes a sufficient “show of authority” to create a constitutional seizure. See Caldwell, 41 So 3d at 203 (concluding that there was no stop when officers gave the defendant Miranda warnings and informed him that he was not under arrest but that the officer merely wanted to make sure that the defendant was aware of his rights). Rather, it is the totality of the circumstances here that would have conveyed to a reasonable person that he or she was not free to end the encounter and depart. The officer, accompanied initially by a second officer, approached defendant’s residence in the evening and spoke with defendant’s wife to ask about criminal conduct. At least part of that conversation was in defendant’s presence. Although defendant’s wife gave an explanation for the location of the truck, the officer did not accept that explanation and asked defendant, who was seated inside the house, to come outside and talk. At that point, a reasonable person in defendant’s shoes would have concluded that he or she was the subject of a criminal investigation. Once defendant was outside on the porch, the officer then walked defendant to a flat area so that he could conduct field sobriety tests. By then, defendant’s course of conduct had been altered twice by the police actions in beckoning him to the porch and then leading him into a flat area for field sobriety tests.

The officer also read defendant his Miranda warnings and asked for consent to conduct a patdown search. Given that Miranda warnings are required only in circumstances where a person is not free to leave (where a person is arrested or in compelling circumstances), a person given those warnings in circumstances like those here would interpret them as communicating some restraint on his or her freedom. Finally, in context, the request for a patdown search implied that a search was constitutionally appropriate, that it was necessary either because defendant would remain in the officer’s presence for some time and therefore present a risk to the officer’s safety or because defendant was being searched incident to being taken into custody. Either implication contributes to the reasonable conclusion in this context that defendant was detained. Compare Ashbaugh, 349 Or at 317-18 (“Although it is possible to restrict a person’s liberty and freedom of movement by purely verbal means,” a request to search purse did not amount to a seizure under Article I, section 9, because the preceding conversation between the police officer and the defendant was “relaxed and nonconfrontational” and the “content” of the questions could not be perceived as a “show of authority”).

In short, under all of the circumstances presented here, we conclude that the officer’s actions constituted a show of authority such that a reasonable person would have believed that the officer had intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement. Accordingly, the encounter in the case was a stop, and the trial court erred in denying the motion to suppress.

Reversed and remanded.

1 We begin by considering defendant’s contentions under state law. See State v. Juarez-Godinez, 326 Or 1, 5, 942 P2d 772 (1997).